The US Supreme Court is weighing-in on the thorny topic of warrantless searches of cellphone data being used to nab suspects. All nine justices have reservations about scouring a suspect’s cellphone for past locations using cellphone data from wireless providers. It is shaping up to be a major test of privacy rights in the digital age.
The justices' comments span the ideological spectrum, revealing how troubled they are that the present police practice may infringe on Fourth Amendment rights to unreasonable search and seizure. It is the latest foray by the justices into how laws should be “tweaked” to keep up with the advances that technology brings us.
At the heart of the court’s 80-minute hearing was the term “unreasonable.” Interpreted one way, it is an unreasonable stretch for law enforcement to use one's cellphone data to scrutinize every detail about one’s comings and goings. The police, on the other hand, hold that having illegal contraband is unreasonable and thus makes detailed examination of everything connected to the cellphone valid and permissible.
Carpenter Vs. US
In a nutshell, this is what the case before the Supreme Court, Carpenter vs. US, is about. The court heard a challenge brought by Timothy Carpenter, who was arrested for being part of a store robbery gang in Michigan and Ohio. He and a co-conspirator were convicted in part due to police obtaining archived cellphone records showing him near the scene of the crimes. Nearly 13,000 so-called "location points" from six months of Carpenter's movements were obtained without a warrant. As a result, Carpenter was sentenced to 116 years in prison. He wants to quash the digital evidence and overturn his conviction.
The American Civil Liberties Union (ACLU) has said police need “probable cause,” and therefore a warrant, in order to avoid violating a citizen’s Fourth Amendment rights. However, the US Justice Department said probable cause should not be needed to obtain customer records under a 1986 federal law called the Stored Communications Act. The Act posited, among other things, that “reasonable grounds” for records that are “relevant and material” to an investigation should enable them to be provided.
Smith Vs. Maryland
There is another case that law enforcement argues sets the precedent for Carpenter vs. US. The Wall Street Journal wrote yesterday:
"Smith v. Maryland (1979) is a precedent supporting government access to telecommunications data. In Smith, government agents acting without a warrant persuaded a Baltimore telephone company to place a pen register on the phone line of a burglary-and-stalking suspect. The device captured the numbers of his outgoing calls, showing that he had dialed the victim’s home number. The Supreme Court found there was no reasonable expectation of privacy and thus no seizure or search."
I’m neither a lawyer nor a judge, but even a layperson can see the flaw in relying on this case - or even the Act - since they predated by decades the technology that is at issue today in Carpenter. The amount of information that can be gleaned from a device that can fit in your hand would have been unthinkable decades ago. The Supreme Court alluded to this very fact in yesterday’s hearing:
"This is an open box. We know not where we go," added Justice Stephen Breyer, speaking to the tough constitutional choices that have to be made. "The electronic information is infallible. You can follow them forever. That's a big change" from prior pre-digital search and seizure cases, he said.
Forever! That’s scary to contemplate. What complicates things further is that it would be difficult to assess a random time-limit (say, 24 or 48 hours) during which a detailed search could be permitted. The crimes that Carpenter was convicted of included a string of robberies over several months. It wasn’t just one instance that can be separated out.
In the background, too, is the ever-present danger of creating a Big Brother situation where police are allowed searches with impunity. Justice Sotomayor expressed this:
"Most Americans, I think, still want to avoid Big Brother. They want to avoid the concept that government will be able to see and locate you anywhere you are at any point in time. This is no different than a telephone company having access to your telephone conversations."
To balance out the inquiry, but also indicate the justices’ quandary, Justice Kennedy opined,
"It seems to me there's a much more normal expectation that businesses have your cellphone data, and could give it to the government in certain cases.”
And so it goes on. A ruling in the case, which has major privacy implications, is due by the end of June.
Opinions are the writer's own.